Elliot v. Chi., M. & St. P. Ry. Co.

Decision Date09 February 1889
PartiesElliot v. Chicago, M. & St. P. Ry. Co.
CourtSouth Dakota Supreme Court

OPINION TEXT STARTS HERE

Appeal from a judgment of the district court of the Fourth district, in and for the county of Clay, entered in favor of the plaintiff, upon a verdict. The action was brought to recover damages for the death of John Elliot, plaintiff's husband, alleged to have been caused by defendant's negligence. The deceased at the time of his death was in the employ of the defendant as a section foreman, and the injuries from the effect of which he died were occasioned by the negligence of other of defendant's employes in running a freight train, and while making a flying switch.

*758R. B. Tripp, ( H. H. Field, of counsel,) for appellant. Grigsby & Lyon, for respondent.

SPENCER, J., ( after stating the facts as above.)

This action was brought by the plaintiff to recover damages for the death of her husband, John Elliot, alleged to have been caused by the negligence of the defendant's employes. The deceased, at the time he received the injuries which resulted in his death, was in the employment of the defendant on its line of railway as a section foreman at a station called Meckling. On November 1, 1884, a freight train was approaching this station from the west, in charge of a conductor, assisted by an engineer, fireman, and others, and as it neared this station was, during the process of making a flying switch, divided into three sections, the first of which, consisting of the engine and a number of cars, passed down the main track. Some of the other cars were put upon a side track; and then the rear section of the train, consisting of four cars, including the caboose and passenger coach, was also moved down the main track. About the time the first section of the train passed down, the deceased was standing a short distance south of the main track, and, after it had passed him, he undertook to cross that track diagonally in an easterly direction, and was struck by the rear section of the train, and instantly killed. There was no evidence showing that the conductor was not a fit person for the service that he was employed in, nor was there any evidence showing that the deceased had received any order from, or was doing any act by direction of, the conductor or other person connected with the train. At the close of the evidence counsel for the defendant moved the court to direct a verdict for the defendant upon several grounds, and, among others, that if the evidence tended to show negligence it was the negligence of co-employes of the deceased, engaged in the same general business, for which no recovery could be had under section 1130 of the Civil Code. This motion was overruled, and the defendant excepted. The court then charged the jury, and, among other things, instructed them as a matter of law that the deceased and the conductor of this freight train were not co-employes within the purview of this statute, and to this instruction the defendant also excepted. The case was submitted to the jury, who returned a verdict in favor of the plaintiff. The defendant duly moved for a new trial upon the grounds presented by said motions and exceptions, and others, which was denied. Judgment upon the verdict was entered for the plaintiff, and the defendant appealed.

The general and well-established principle of the common law, that an employer is not liable to one of his agents or servants for the negligence of another of his agents or servants engaged in the same general business, has been ingrafted in, and forms part of, the statute law of this territory, and hence, in the consideration of the question presented by the exceptions of the defendant to the ruling of the court above alluded to, we have only to determine whether the deceased and the conductor of the freight train aforesaid were co-employes of the defendant, engaged in the same general business, within the meaning of this statute. The statute does not undertake to define who are co-employes, or what is intended by the term “same general business,” but merely declares the general rule of law as to the non-liability of an employer to his agents and servants in the cases mentioned, leaving it for the courts to determine when persons are co-employes, engaged in a common business. The question thus presented has frequently been considered by the *759courts of this country and England, and to the adjudications upon this subject we may turn for such explanation of this term as they may yield, and as demonstrating under what circumstances this rule has been applied. A general collection of all the authorities on this subject at this time would be impracticable, and is not necessary, but a few, selected from the many, as showing the current of authority, and the general application of the principle, will be all-sufficient. It was decided as early as 1841, in South Carolina, that a section foreman who was injured by the negligence of an engineer could not recover against their common employer for the injuries thus sustained, because they were co-employes of a common master, engaged in the same general business. Murray v. Railroad Co., 1 McMul. 385. Soon after, it was determined by the supreme court of Massachusetts that an engineer who was in the employ of a railroad company, and was injured by the negligence of a switch-tender, could not recover damages against the company, the negligent employe being also in its employ. Farwell v. Railroad Co., 4 Metc. 49. This decision has since been followed by the courts of that state, and the doctrine applied where a brakeman was injured by the negligence of a track-man, (Holden v. Railroad Co., 129 Mass. 268,) and in Clifford v. Railroad Co., 141 Mass. 564, 6 N. E. Rep. 751, where the injuries were sustained by a section-man, and were occasioned by the negligence of an engineer, both in the service of the company. The courts of New York have held a similar rule, and applied it in the instances following: Where a section-man was injured by the negligence of a train-man, (Coon v. Railroad Co., 5 N. Y. 492;) where a brakeman was injured through the carelessness of an engineer, (Boldt v. Railroad Co., 18 N. Y. 432;) where a shoveler was injured by the negligence of train-men, (Henry v. Railroad Co., 81 N. Y. 373;) where a fireman was killed because of the negligence of a switchman, (Harvey v. Railroad Co., 88 N. Y. 481.) In Illinois, the rule was applied in the case of a car-repairer injured by the negligence of an engineer,) Valtez v. Railway Co., 85 Ill. 500;) and in Pennsylvania, in the case of a section-man and engineer, (Keyes v. Pennsylvania Co., 3 Atl. Rep. 15;) in Wisconsin, in the case of a shoveler and conductor, (Heine v. Railroad Co., 58 Wis. 525, 17 N. W. Rep. 420;) in Minnesota, in the case of an engineer and station agent, (Brown v. Railway Co., 31 Minn. 553, 18 N. W. Rep. 834;) in Indiana, where a section-man was injured through the negligence of an engineer, (Gormley v. Railway Co., 72 Ind. 31;) and, also, where a track-man was injured by negligence of engineer, (Capper v. Railroad Co., 103 Ind. 305, 2 N. E. Rep. 749;) and in many of the other states. In all of them where the subject has been considered by the courts, except Tennessee, the rule has been applied in like cases; and, finally, the United States supreme court, in the case of Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322, has held it to be the established law, and applied it to the case where a switchman was injured through the negligence of an engineer. In the latter case Mr. Justice Gray delivered the opinion of the court, and in discussing the relations of these persons, and whether they were engaged in a common business, used the following language: They are employed and paid by the same master. The duties of the two bring them to work at the same place at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. Their separate services have an immediate common object, the moving of the trains. Neither works under the orders or control of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing his service; and neither can maintain an action for an injury, caused by such negligence, against the corporation, their common master.” This opinion was concurred in by all the members of the court, and would seem to be decisive of the question under consideration. In the case at bar the character of the labor which the deceased was engaged to perform required him to be on and about the track to keep it in proper condition for running trains over it, and placed him in situation where he was liable to be injured by passing trains. All of the duties which he was employed to perform necessarily required his presence on the track, and all the risk to which he was exposed arose from the nature of the employment which he took upon himself.

Some of the cases differ as to the reason of the rule, but there is no conflict of opinion as to its application to employes of a common master, at work for the accomplishment of a single purpose. It is sufficient within these cases to command the application of the rule, if the end to be obtained by the labor of the several employes under a common master is the same, to constitute them fellow-servants engaged in the same general business, though the services rendered may be different in kind, and rendered separately and independently of each other. It was in this manner, and for the achievement of a common purpose,-the moving of trains over defendant's road,-that the conductor of this freight train and the deceased were employed. Both were in the employ of and paid by the same master, both were engaged in the service of operating a railroad,-the conductor in managing trains passing over the road, and the deceased in keeping such road in repair and condition for the...

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